Roberts and the Activist Solicitor General

The Bush administration has been reluctant to release John Roberts’ work from his time as deputy solicitor general. John Roberts’ role in redefining the position of the solicitor general — which actually dates back to his work in the Reagan administration — may be why.

Since 1870, when Congress passed legislation officially creating the solicitor general’s position, it has been widely accepted that the solicitor general has but one client: the U.S. government. Historically, the office has always been respected for its nonpartisanship: “For example, no modern presidents were more partisan — or more politically opposite — than Lyndon Johnson and Richard Nixon. Yet former Harvard Law School Dean Erwin Griswold served as solicitor general for both these presidents.”

“It was not until the Reagan presidency that the office was first truly politicized.” Under President Reagan, solicitor general Charles Fried “sought to advance conservative political efforts by urging the Supreme Court to outlaw affirmative action and overturn Roe v. Wade.” In his “most memorable case” — Bob Jones University v. United States — Fried “argued that schools that discriminate against blacks should still be accorded tax breaks.” This position has been described as “a case that most all his predecessors (at least since the Civil War) and successors would have resigned before presenting to the court.” A former Supreme Court justice has described Fried’s work as “hardly the mark of a reasoned approach to the law. It’s ideology, pure and simple. It’s an assault on settled practices.”

But Fried was far from the mastermind behind these efforts. The person responsible for breaking decades of precedent to use the solicitor general’s office to promote conservative causes was then-Attorney General Edwin Meese.

And who served as assistant attorney general in the first administration to politicize the office of the solicitor general? John Roberts Jr.

Is this the reason why the Bush administration wants to keep Roberts’ own work as solicitor general under wraps?